The Hawaiian gazette., 1887-04-05

] klNElSS Vi TIE SUZUKI kistA0 - amer anu
! Paw in the sum of forty thousand
dollars. according to the tenor of four
promissory notes dated January IL
| AID. 1880, and is also owing theinter-
est upon said notes, the same being
secured by mortgage of even date
with said notes recorded Lib, 60, fol.
%. IS, and whereas said party of the
first part is unable to pay said notes,
and desires to surrender to said par
ties Of the second part all Of the pre-
misses and other property secured by
said mortgage" 'Now therefore, in
consideration aforesaid and of one
dollar" &c,
The property in this mortgage is
conveyed, as we'll as some property
subsequently acquired by Wilfong
and "also the Equity of Redemption
of Wilfong."
Mr.. Patty says the object of this
conveyance was TO acquire ownership
of the property without foreclosure Of
the mortgage enterprise was not
paying and he wanted to get the prop
erty back. He does not think it was
intended TO be full discharge of the
Indebtedness but has never demanded
1t since. He employed Mr.. Wilfong
as manager of the plantation since
the conveyance back and has paid him
wages-but not in full-not deducting
anything on account of former in
debtedness, Wilfong says the con-
veyance was to discharge all his in
debtedneSs, Il was to lose my four
yesrs' work and they were TO take
everything. land. live stock. carts, i'm
provementS, &c. I had built houses,
&c. and thus spent about 5000 on
the place"
Patty says he always considered the
shares IN question as his, but both he
and Wilfong admit that there was no
conversation about them at the time
Of the conveyance Of the mortgaged
property
Enough Of the evidence has been
stated for an understanding OF the
case, The first question I have tode
eide Is whether the evidence discloses
q s1.s OF the % shares in the Hawn.
Ayr. Co: to Patty. The law Is not dis
puted. as laid down by ColhTooke on
Collateral Securities. Sec. PSI, that
when certificates of stock have been
pledged as collateral security and the
Pledge hiss even gone. so far as TO
have the stock transferred TO him on
the books Of the company and has re-
ceived a new certificate IN his own
name so as TO become vested with the
legal title TO the stock, equity viii re-
Geve and VIII decree the stock to be
surrendered upon payment of interest
and assessments, subject TO credits for
dividends. Parol testimony viii be
received 10 show that the transfer,
though absolute in form. was intended
IS collateral security only.
The cases sustain the text.
Brick vs.. Brick. IS {. s.. 514.
Newton vs.. Fay. 10 Allen. sos.
McMahon vs.. Macy. 81 \. Y, 161
Pinkerton vs.. Railroad. y Y. h.
42244 . and many other cases.
Upon the evidence above sketched,
1 think 1t IS ineontesible that VII
Tong never intended TO make an abso-
lutte sale Of the stock 10 Patty. His
correspondence shows this More
over. that Patty so regarded it is eYi-
dent from his statement IN the letter
Of April I. 1882. that he had taken I'D
the note for S6.000-at C. Brewer &
Co.'S. and had collected $3.50 for the
dividend of March 81. for l,iict tx had
siotR crcdE 70 WIrags. If he had bought |
the stock. the dividends were his and |
not Wilfong's He asks in this letter /
that Wiltong authorize c. Brewer d |
Co. 10 make the required transfer of |
the shares TO him. But the shares |
had already been delivered TO him by |
c. Brewer 4 Co. when he bought the I
note on January II. 1882. and think /
there Is no doubt that he would have /
been entitled TO the possession of the
security upon his buying the note,
without any express authorization
from Wiltong.
But counsel for defendants takes
the position that though the shares
were never absolutely sold by VII
fong TO Patty, they were pledged by
Wiltong to Parker and Patty as part of
the security for the purchase money
of the planting interest IN Hamakua.
and that this lien Is still subsistng
and plaintiff Is not entitled to redeem
the shares without paying the remain
ing Indebtedness. This Is g question
OF considerable difficulty.
Does the letter OF Wilfong 10 c.
Brewer & Co. Of April S. 1850, QUOTED
above N full constitute pledge Of
the shares 10 Parker and Patty? 1
think not The essential TO the valid
ny Of g pledge, that the article should
be delivered 10 the Pledge. does not
exist in this case. The shares re-
manned II c. Brewer d Co.'S posses
sion for nearly two years after this
letter. The letter was written under
the impression that the mortgage OF
18th January. 1850, covered these
shares. and Il was c. Brewer d Co.'S
authority from Wilfong 10 deliver